Israel’s Policy on Selective Conscientious Objection

STATE OF ISRAEL
MINISTRY OF JUSTICE
Human Rights and International Relations Department

May 25, 1993

With regard to measures taken against Israel Defense Forces (IDF) soldiers who refuse to serve in specific locations (selective conscientious objectors), the following is the legal and factual background on the subject of Israel’s policy on selective conscientious objection.

1. A soldier may seek an exemption from service or a deferment for special reasons under Article 36 et. seq. of the Defense Service Law (Consolidated Version) (1959) as amended. Special reasons in this instance include educational requirements, economic hardship and extenuating family circumstances. In light of the enormous armies of the Arab States at war with Israel, which can mobilize over five million soldiers as opposed to the considerably smaller IDF, it is understandable that the needs of the IDF must take priority over the personal preferences of its soldiers.

2. The IDF is non-political. Soldiers are not permitted to engage in partisan politics while in uniform. As citizens of a democracy, however, soldiers are permitted to be members of political parties and to advocate change in government policies. Soldiers of the IDF, just as all Israeli citizens, are encouraged to vote in national elections. By voting and exercising their individual right to party membership, soldiers are able to participate in the democratic process with the intention of achieving change. However, each individual must abide by policies of the democratically elected government with which he might disagree.

A soldier cannot be allowed to dictate which government policies he will respect nor where and under what circumstances he will serve. Israel does not recognize a right to "selective" objection, i.e., unwillingness to serve in specific places or capacities. The recognition of such a "right" runs contrary to basic conceptions of military order and discipline. Under any democracy’s military law, refusal to comply with a military order constitutes grounds for criminal prosecution or disciplinary action. No army could function without the ultimate authority to order soldiers to serve in any location according to military necessity.

In two decisions, the Supreme Court of Israel upheld the principle that soldiers of the IDF must serve where they are posted: that of Elgazi v. The Minister of Defense and Shine v. The Minister of Defense. In the Elgazi decision, the Court stated, inter alia, "No military system can reconcile itself with the existence of a principle whereby soldiers can dictate to it where they will serve, whether for economic or social reasons, or for reasons of conscience." (HCJ 470/80) In the decision, the Court stated that "to accept this phenomenon not only contradicts express legislation under which a soldier must serve "when and where" so commanded (Sec. 19(a) of the Defense Service Law), but further damages the preparedness, training and combat-readiness of the IDF and the fulfillment of its missions, and, no less seriously, damages the morale of his brothers-in-arms, who put their own lives in danger, while their comrades are ‘exempted’…".

3. Ultimately, an IDF soldier’s refusal to serve in a specific location or to perform specific duties is borne of particular political convictions and is not an absolute objection to participation in the army. Those soldiers who refuse to serve in the administered areas are cognizant of the legal consequences for selective objection to military service.

Most democracies do not exempt selective conscientious objectors from army service. For example, In the case of Gilette v. United States, 401 U.S. 437 (1971), the United States Supreme Court ruled as follows:

no person shall be subject to service in the armed forces who, by reason of religion, training and belief, is conscientiously opposed to participating in war of any form… [conscientious objection] is intended to exempt persons who oppose participating in all wars … persons who solely object to participation in a particular war are not within the purview of the exemption even though the objection may have such roots in a claimant’s conscience and personality that it is ‘religious’ in character. [Emphasis added.]

The disciplinary measures which Israel takes against selective objectors are considerably more lenient than those taken by the United States and other Western democracies. For example, during the period when the Gilette case was heard, the United States was engaged in the Vietnam war. United States soldiers who refused to participate in the war were often punished by an initial prison sentence of five years [see e.g., U.S. v. Fallon, 407 F. 2d 621, cert, den. 395 U.S. 908 (1969)]. More recently, during the Gulf War, members of the U.S. armed forces were sentenced to terms from 4 to 30 months imprisonment for refusing to accompany their units to Saudi Arabia. By contrast, Israel, which faces a much more imminent security threat and which must place a higher value on the preparedness of each individual soldier in its comparatively small army, disciplines selective objectors with relatively light sentences. Single sentences for selective objectors rarely exceed one month.

We appreciate the opportunity to respond to your inquiry directly and hope we have been able to clarify Israel’s position and considerations in this complex matter.